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DISH Network must revise or rescind its employment agreements across the U.S. after
the NLRB found they contain provisions that violate federal labor law (
DISH Network, LLC
, 2017 BL 121567, 365 N.L.R.B. No. 47, 4/13/17
).

The satellite TV and media company required employees to sign mandatory arbitration
agreements that appeared to block employees from filing charges with the National
Labor Relations Board, the board said April 13.

The board also said DISH interfered with employee rights under the National Labor
Relations Act by prohibiting employees from discussing arbitration proceedings with
other employees.

The ruling shows employers must draft arbitration agreements and policies carefully
to avoid creating an impression they interfere with employee rights under the NLRA.

Managers should carefully review the language of arbitration agreements and how the
employer has applied them, Steven M. Swirsky, a member of Epstein Becker Green in
New York who represents employers, told Bloomberg BNA April 14. But to avoid problems,
they should also “carve out” and protect the right of each employee to file NLRB charges.

Employers that think they need to build confidentiality rules into an arbitration
procedure should consider why such language is needed and how it can be framed, Swirsky
said. Blanket rules that prohibit employees from discussing workplace issues are inconsistent
with NLRB precedents and they’ll be found illegal.

Employers also should note the concurring opinion by the NLRB’s acting chairman, Philip
A. Miscimarra (R), and his desire to examine employer rules on their merits, not merely
on how employees may reasonably construe the employer’s language, Swirsky said. When
a new majority takes over the NLRB, “that’s your direction,” he said.

Attorneys for DISH Network and Denney didn’t respond to requests for comment on the
decision.

Board Finds Illegal Provisions

DISH has for several years required employees at U.S. locations to sign agreements
requiring arbitration of “any claim, controversy and/or dispute” against the employer,
“whenever and wherever brought,” according to the board.

Acting on an unfair labor practice charge by former employee Brett Denney, Members
Mark Gaston Pearce (D) and Lauren McFerran (D) said an employer rule or policy is
unlawful if employees would reasonably believe it prohibits them from exercising their
rights under the NLRA.

Employees would reasonably read the DISH agreement as prohibiting them from filing
unfair labor practice charges or using the NLRB’s administrative processes and the
agreement was therefore illegal, the board members said.

The DISH agreement also violated employee rights by requiring workers to refrain from
discussing “all arbitration proceedings, including but not limited to hearings, discovery,
settlements, and awards,” the board majority said.

Miscimarra Concurs, Sets Limits

Acting Chairman Miscimarra concurred in the majority’s unfair labor practice findings,
but he staked out his own positions on both issues.

Miscimarra said he believes an employer may lawfully require employees to arbitrate
NLRA claims, “at least where the agreement expressly preserves the right to file claims
or charges with the Board or, more generally, with administrative agencies.”

However, he wrote, the language of the DISH agreement was broad and unqualified, and
it improperly restricted the filing of charges with the NLRB.

Miscimarra also agreed with Pearce and McFerran that the confidentiality provision
in the satellite TV provider’s arbitration agreements violated the NLRA.

Noting that the agreement apparently covered claims of NLRA violations, Miscimarra
said the secrecy requirement could interfere with the rights of employees to engage
in concerted activity for their mutual aid or protection.

There may be some cases in which an employer can demand confidentiality in an arbitration
proceeding for reasons unrelated to the NLRA, Miscimarra said, but he wrote “this
is not such a case and the record reveals no countervailing interest that justifies
the scope of the confidentiality clause at issue here.”

To contact the reporter on this story: Lawrence E. Dubé in Washington at
ldube@bna.com

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